Who is Liable for Out-of-State Vocational Rehab?

Saturday, August 2, 2003 | 0

Who is Liable for Out-of-State Vocational Rehab?

Eligibility for vocational rehabilitation benefits and services outside the state of California continues to be a cause of much confusion. Is a QIW injured employee eligible for benefits and services once s/he moves outside California? If so, when does the defendant's liability commence?

L.C. section 4644(g) indicates that an employer/insurer is not liable for providing rehabilitation services outside California "unless those services are more cost effective than similar services provided in the state." The only published case on this subject (Antonette Niedle v. WCAB (2001) 66 CCC 223 (DCA Published)) confirmed that L.C. section 4644(g) is constitutional - there must be a showing that the proposed out-of-state program is more cost-effective than a similar program in California. The problem is in the interpretation of the statute and the Niedle case.

Most defendants believe that it is incumbent upon the employee to propose a vocational goal that merits investigation before there is any liability for assignment of a QRR and payment of VRMA. An 18 month vocational training program would not incur this liability, (because the employee would not be able to complete the program), but a 6 month program would require evaluation since many vocational programs in California are 6 months in length and can be completed within the cap. A few RU Consultants agree with this position and will not order benefits and assignment of a QRR until the employee has made a specific proposal.

Many applicant attorneys take the position that the employee is entitled to an evaluation to determine if it is feasible to develop a plan. They believe the defendant does not incur liability for a rehabilitation plan only where the evaluation demonstrates that a comparable plan cannot be developed at the employee's location. These attorneys believe that the employee is entitled to payment of VRMA during this evaluation period and failure to pay subjects the defendant to penalties and places benefits outside the cap.

A third alternative, and one favored by a number of RU Consultants, requires the defendant to assign a QRR upon a request for services by the out of state applicant - but VRMA benefits do not start until the applicant and QRR have identified a vocational goal that meets the "cost effective" requirement of L.C. section 4644(g).

I believe the Legislature intended to place the burden for identifying a vocational goal on the out-of-state employee - but I do not make the decisions at the Rehab Unit. As a practical matter, I would suggest learning how your local Consultant interprets L.C. section 4644(g) and establishing a policy to address VR services for out-of-state QIW applicants. The following is an example:

1. Advise out-of-state QIW in the Notice of Potential Eligibility (NOPE) that s/he is not eligible for VR services unless s/he proposes a potential vocational goal that is more cost-effective than a similar program in California.

2. Advise the applicant how to begin their own search and evaluation process. A pamphlet or fact sheet should be enclosed with the notice that explains what is expected of the employee before s/he contacts you to request services. [The sample pamphlet attached to this newsletter was developed for that purpose. If it meets your needs, please feel free to add your company information and use it for your out-of-state applicants.]

3. Be prepared to assign a QRR promptly if the employee contacts you with a proposal meriting investigation (the QRR must be assigned by agreement). If the applicant's proposal does not merit evaluation, s/he should be advised, in writing, regarding your reasons.

4. VRMA should commence at the same time as you agree to assign a QRR.

An alternative to this sample policy would be to assign a QRR upon receipt of the applicant's request for VR services but start VRMA only upon identification of a viable vocational goal (as in the ￯﾿ﾯ￯ﾾ﾿￯ﾾﾢ￯﾿ﾯ￯ﾾﾾ￯ﾾﾀ￯﾿ﾯ￯ﾾﾾ￯ﾾﾘthird alternative' above).

Communication is key in this process. A simple "No" response to a request by the employer/insurer is likely to result in a dispute. An explanation of the employee's responsibilities often results in a plan consistent with L.C. section 4644(g) without a dispute.

NOTE: This sample policy assumes modified/alternative work with the pre-injury employer has been eliminated as an option.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.